firm news

Emma O'Connor
Emma O'Connor,
Key elements of shared parental leave
25 March 2015

The new shared parental leave scheme (SPL)

Under the new SPL scheme, parents/partners/adopters will be able to share any remaining statutory maternity or adoption leave left out of the total statutory leave period, once the mother or adopter has curtailed their maternity/adoption leave or returned to work on the agreed return to work date. The first two weeks after the birth are compulsory maternity leave and must be taken by the mother (there is a similar period under adoption rules). The remaining 50 weeks can be divided by the parents and 37 weeks of statutory pay (less any maternity/adoption leave taken). The remaining leave could be taken by the parents at the same time or separately. The remaining ‘pot’ of statutory leave has to be used up by the child’s first birthday, or within one year of adoption.

The default position will remain for an employee to take maternity or adoption leave in one continuous block. Those employees wishing to take advantage of the Shared Parental Leave provisions must meet certain eligibility requirements and give their respective employer at least eight weeks’ of their intention to end maternity leave and start SPL.

Key Features of the New Right

  • Employees will have to ‘opt’ into the new SPL scheme and provide a signed declaration for the other parent that they agree to share the remaining statutory leave as SPL;

  • Both the mother and her partner must qualify, in order for them to benefit from shared parental leave. The employee must comply with a “continuity of employment test” and the other parent must comply with an “employment and earnings test”. For example:

    • Mother – she must have been continuously employed for at least 26 weeks by the end of the 15th week before the due date, and have returned to work or curtailed their maternity leave.
    • Partner – the partner must have worked for at least 26 weeks in the 66 weeks prior to the baby’s due date, and can be employed, self-employed or an agency worker. The partner must have earned an average of £30 a week in any 13 of those weeks (employment and earnings).
  • In terms of the process, in general terms, the parents must:-

    • Mother – must serve a Curtailment Notice/return to work

    • Both parents – send their employer a Notice of Entitlement and Eligibility Notice to their respective employer + a declaration from the other parent confirming their compliance with the eligibility requirements

    • Both parents – send their employer a Booking Notice giving 8 weeks’ notice of when they intend SPL to start.

  • If the couple qualifies for statutory maternity pay, maternity allowance or statutory paternity pay, they may be entitled to Statutory Shared Parental Pay (ShPP) (paid at the same rate as Statutory Maternity Pay) for any remaining statutory leave; however, subject to a maximum of 37 weeks of SPL.

  • Employees could ask to take any SPL in ‘continuous’ blocks – if this is the case, employers have to accept the request. Employees could also ask to take leave in ‘discontinuous’ blocks where they return to work in between. Discontinuous leave does not have to be accepted if this could not be accommodated for business reasons. In which case, the employee has the option to take their leave as a continuous period or withdraw their request.

  • Employees can issue their employer with 3 notices during the SPL period. A notice could be to book further periods of leave or to amend a period of booked leave. Employers are allowed to increase the number of notices which an employer could issue.

  • The new provisions also provide each parent with 20 shared parental leave in touch days on top of the existing 10 Keeping in Touch (“KIT”) days currently provided for maternity leave and OPL.

  • Those returning from SPL are protected from detriment and it will be automatically unfair to dismiss them for reasons connected to their SPL. Employees also have rights on return to work depending on whether they take more of less than 26 weeks of combined leave (SPL, maternity/adoption leave or paternity leave).

  • Additional Paternity Leave will cease from 5 April 2015; however, if employees are currently on Additional Paternity Leave they will be able to continue until the end of the period.

What to do now?

The rules relating to SPL are complicated. There are changes that will need to be made to existing policies such as maternity, adoption and paternity leave to deal with the other changes which take effect from April 2015.

For advice and information about the new rules and what they will mean for your business as well as details of our Shared Parental Leave Toolkit to help employers manage the new process and procedure, please contact us on 0118 952 7284 or [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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